Pale March.docx

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 105938 September 20, 1996 TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents. G.R. No. 108113 September 20, 1996 PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents. KAPUNAN, J.: These case touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based — the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." 1 Among the dependants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings.2 On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as party-defendant.3Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33.4 Petitioners were included in the Third Amended Complaint on the strength of the following allegations: 14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984.5 In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that: 4.4 Defendants-ACCRA lawyers' participation in the acts with which their codefendants are charged, was in furtherance of legitimate lawyering. 4.4.1 In the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex "A" of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. 4.5 Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the "shares" appearing in his name in Annex "A" of the expanded Amended Complaint are his assets. 6

Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth.7 Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings.9 Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. 10 It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. 11 On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held: xxx xxx xxx ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. 5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72). The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Neither can this Court. WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit. 12 ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds: I The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict application of the law of agency. II The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment. 1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder. 2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. 3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause. III The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. 1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s).

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2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters. IV The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938. Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyerclient relationship. Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status. 13 In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No.0033 as to Roco 'without an order of court by filing a notice of dismissal'," 14 and he has undertaken to identify his principal. 15 Petitioners' contentions are impressed with merit. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners — the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e, their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Emphasis ours) In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled "Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government" respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their "so called client is Mr. Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons; some in blank. We quote Atty. Ongkiko: ATTY. ONGKIKO: With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Conjuangco and some are for Mr. Marcos. Fifth, that most of thes e corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves. 16 It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. II The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum(contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire, 17 and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. 18 But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee. In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client. 19 A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent. 20 Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court 21 and exercises his judgment in the choice of courses of action to be taken favorable to his client.

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, 22 that is required by reason of necessity and public interest 23 based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. 24 It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition. 25 In Stockton v. Ford,26 the U. S. Supreme Court held: There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. 27 In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically "forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment." 28Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 29 Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client. Considerations favoring confidentially in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a client's identity should not be shrouded in mystery 30 Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. 31 The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is." 32 He cannot be obliged to grope in the dark against unknown forces. 33 Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the client's identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in

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confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his client's identity before a grand jury. Reversing the lower court's contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged. U .S. v. Hodge and Zweig,35 involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer's legal advice was obtained. The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino Gang," a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino. In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held: A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v. Koerner, 279 F. 2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case. The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. "In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the client's consent." 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client's identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications. 36 2) Where disclosure would open the client to civil liability; his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,37 prompted the New York Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation. In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said: That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney is such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him. 38 All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; . . . And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. . . It appears . . . that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained. 39 In the case of Matter of Shawmut Mining Company,40 the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the court's request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyer's refusal to divulge the names of his clients the court held: If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client. 41 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. In Baird vs. Korner,42 a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS). It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No

investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12, 706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Baird's repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that client's income tax liability pending. The court emphasized the exception that a client's name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client's identity exposes him to possible investigation and sanction by government agencies. The Court held: The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose — to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed — to advise his clients what, under the circumstances, should be done. 43 Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. 44 Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. 45 Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. 46 The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to nonprosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their client's shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." 47 An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the client sought advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime. 48 The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client." 49 "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications." 50 Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecution's suspicions, then the client's identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the

3

principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedings51 and Tillotson v. Boughner.52 What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. There are, after all, alternative source of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the privilege. 53 It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case the it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon,54 the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client. To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilioof an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship. 57 Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents' position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise: Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life — so share its passions its battles, its despair, its triumphs, both as witness and actor? . . . But that is not all. What a subject is this in which we are united — this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion — only to be won by straining all the faculties by which man is likened to God. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client's name is not privileged information. If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties. The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investment Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link "that would inevitably form the chain of testimony necessary to convict the (client) of a crime." III In response to petitioners' last assignment of error, respondents alleged that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require, which includes . . . the identity of the principal." 59

First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of-court but also in the Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering." 60 Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show — and absolute nothing exists in the records of the case at bar — that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions.61 To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. The equal protection clause is a guarantee which provides a wall of protection against uneven application of status and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment. 62 Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed. . . . What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest. 63 We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution.64 It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against selfincrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer. While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege. WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al." SO ORDERED.

4

A.C. No. 4078 July 14, 2003 WILLIAM ONG GENATO, complainant, vs. ATTY. ESSEX L. SILAPAN, respondent. PUNO, J.: In this complaint for disbarment filed by William Ong Genato against respondent Atty. Essex L. Silapan, complainant alleged that in July 1992, respondent asked if he could rent a small office space in complainant's building in Quezon City for his law practice. Complainant acceded and introduced respondent to Atty. Benjamin Dacanay, complainant's retained lawyer, who accommodated respondent in the building and made him handle some of complainant's cases. Hence, the start of the legal relationship between complainant and respondent. The conflict between the parties started when respondent borrowed two hundred thousand pesos (P200,000.00) from complainant which he intended to use as downpayment for the purchase of a new car. In return, respondent issued to complainant a postdated check in the amount of P176,528.00 to answer for the six (6) months interest on the loan. He likewise mortgaged to complainant his house and lot in Quezon City but did not surrender its title claiming that it was the subject of reconstitution proceedings before the Quezon City Register of Deeds. With the money borrowed from complainant, respondent purchased a new car. However, the document of sale of the car was issued in complainant's name and financed through City Trust Company. In January 1993, respondent introduced to complainant a certain Emmanuel Romero. Romero likewise wanted to borrow money from complainant. Complainant lent Romero the money and, from this transaction, respondent earned commission in the amount of P52,289.90. Complainant used the commission to pay respondent's arrears with the car financing firm. Subsequently, respondent failed to pay the amortization on the car and the financing firm sent demand letters to complainant. Complainant tried to encash respondent's postdated check with the drawee bank but it was dishonored as respondent's account therein was already closed. Respondent failed to heed complainant's repeated demands for payment. Complainant then filed a criminal case against respondent for violation of Batas Pambansa Blg. 22 and a civil case for judicial foreclosure of real estate mortgage. In the foreclosure case, respondent made the following allegation in his Answer: xxx xxx xxx 4. That complainant is a businessman who is engaged in the real estate business, trading and buy and sell of deficiency taxed imported cars, shark loans and other shady deals and has many cases pending in court; xxx xxx xxx Complainant denied respondent's charges and claimed that respondent's allegation is libelous and not privilege as it was irrelevant to the foreclosure case. Complainant further pointed to paragraph 12 of respondent's Answer, thus: 12. That on January 29, 1993, before paying for the next installment on his car on January 30, 1993, defendant Essex L. Silapan asked the complainant to execute a Deed of Sale transferring ownership of the car to him but the latter said that he will only do so after the termination of his criminal case at Branch 138 of the Regional Trial Court of Makati, Metro Manila, x x x where he (complainant) wanted Essex L. Silapan, his former counsel in that case, to offer bribe money to the members of the review committee of the Department of Justice where a petition for review of the resolution of the Investigating Prosecutor was pending at the time, x x x or, in the event that the said petition for review is denied, he wanted Essex L. Silapan to offer bribe money to the prosecutor assigned at the above-mentioned Court, and even to the presiding Judge, for his eventual acquittal, which defendant Essex L. Silapan all refused to do not only because such acts are immoral and illegal, but also because the complainant confided to him that he was really involved in the commission of the crime that was charged of in the above-mentioned case. (emphasis supplied) Complainant gripes that the foregoing allegations are false, immaterial to the foreclosure case and maliciously designed to defame him. He charged that in making such allegations, respondent is guilty of breaking their confidential lawyer-client relationship and should be held administratively liable therefor. Consequently, he filed this complaint for disbarment, praying also that an administrative sanction be meted against respondent for his issuance of a bouncing check. When required by the Court to comment, respondent explained1 that it was complainant who offered him an office space in his building and retained him as counsel as the latter was impressed with the way he handled a B.P. 22 case2 filed against complainant. Respondent insisted that there was nothing libelous in his imputations of dishonest business practices to complainant and his revelation of complainant's desire to bribe government officials in relation to his pending criminal case. He claimed to have made these statements in the course of judicial proceedings to defend his case and discredit complainant's credibility by establishing his criminal propensity to commit fraud, tell lies and violate laws. He argued that he is not guilty of breaking his confidential lawyer-client relationship with complainant as he made the disclosure in defense of his honor and reputation. Secondly, respondent asserted that he executed the real estate mortgage in favor of complainant without consideration and only as a "formal requirement" so he could obtain the P200,000.00 loan and for this reason, he did not surrender his title over the mortgaged property to complainant. Thirdly, respondent claimed that he issued the postdated check, not for account or for value, but only: (a) to serve as "some kind of acknowledgment" that he already received in advance a portion of his attorney's fees from the complainant for the legal services he rendered, and (b) as a form of assurance that he will not abandon the cases he was handling for complainant. Lastly, respondent denied that he received a P52,289.90 commission from Romero's loan which he allegedly helped facilitate. He alleged that the amount was paid to him by Romero as attorney's fees, the latter being his client. He used this amount to pay his arrears with the car financing firm. On January 29, 1993, before paying the next amortization on the car, he asked complainant to execute a deed of sale transferring ownership of the car to him. Complainant refused and insisted that he would transfer ownership of the car only after the termination of his criminal case which respondent was handling as his defense lawyer. Consequently, respondent stopped paying the amortization on the car. Respondent also alleged that he filed a perjury case against complainant who, in turn, filed a complaint for libel against him. In a Resolution, dated October 27, 1993, the Court referred the administrative case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. On August 3, 2002, the Board of Governors of the IBP approved the report of the investigating commissioner finding the respondent guilty as charged and recommending his suspension from the practice of law for one (1) year. We affirm the findings and recommendation of the IBP.

Prefatorily, we stress that we shall not delve into the merits of the various criminal and civil cases pending between the parties. It is for the trial courts handling these cases to ascertain the truth or falsity of the allegations made therein. For this reason, it is not for us to sanction respondent for his issuance of a bouncing check. His liability has yet to be determined by the trial court where his case is pending. The only issue in this administrative case is whether respondent committed a breach of trust and confidence by imputing to complainant illegal practices and disclosing complainant's alleged intention to bribe government officials in connection with a pending case. Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him. The longestablished rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their relationship. 3 The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party's ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client. 4 It must be stressed, however, that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of a fraud.5 If the unlawful purpose is avowed, as in this case, the complainant's alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. Be that as it may, respondent's explanation that it was necessary for him to make the disclosures in his pleadings fails to satisfy us. The disclosures were not indispensable to protect his rights as they were not pertinent to the foreclosure case. It was improper for the respondent to use it against the complainant in the foreclosure case as it was not the subject matter of litigation therein and respondent's professional competence and legal advice were not being attacked in said case. A lawyer must conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness. Thus, the Court agrees with the evaluation of the IBP and finds that respondent's allegations and disclosures in the foreclosure case amount to a breach of fidelity sufficient to warrant the imposition of disciplinary sanction against him. However, the recommended penalty of one (1) year suspension of respondent from the practice of law seems to be disproportionate to his breach of duty considering that a review of the records of this Court reveals that this is the first administrative complaint against him. IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered suspended from the practice of law for a period of six (6) months effective upon receipt of this Decision. Let a copy of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines. The Court Administrator is directed to circulate this order of suspension to all courts in the country. SO ORDERED.

5

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13626 October 29, 1918 THE UNITED STATES, plaintiff-appellee, vs. ELIAS CUETO, defendant-appellant. Godofredo Reyes for appellant. Solicitor-General Paredes for appellee.

MALCOLM, J.: In the general election held on June 6, 1916, Elias Cueto, now the defendant and appellant, was an election inspector for an election precinct in the municipality of Tiaong, Province of Tayabas. For the position of municipal president of this municipality, two gentlemen named mayo and Magbiray were candidate. Toribio Briones, a qualified elector, belonged to the Mayo party. He was given a slip containing the slate of the candidates of the Mayo faction for the different offices, such as is circulated at election time, and with this in his possession entered the polling place. Being a disabled person, because of failing sight and rheumatism in his hand, although still able when necessary to read and write, Briones secured the assistance of Cueto to prepare his ballot. Instead, however, of copying the name of Mayo, the candidate for municipal president found on the slip of paper, for whom Briones desired to vote, Cueto inserted the name of Magbiray. When once outside the dark booth, Briones noticed that his ballot contained the name of Magbiray and on his objecting anew ballot with the Name of Mayor was prepared for him by the election inspector. On these facts, which we find supported by the proof, Cueto was charged with and convicted, of a violation of the Election Law, and sentence to two months imprisonment and to pay the costs. This statement , with the addition of what is hereafter said, disposes for the sole assignment of error by the appellant. The Philippine Bill and subsequent Act s of Congress conceded to qualified person the high prerogative of suffrage. To carry our this purpose, and then revised by the Philippine legislature. Its primal feature was to allow the citizen to vote secretly for whom he pleased, free from improper influences. As was well said in the instructive decision in Gardiner vs. Romulo. ([1914]. 26 Phil., 521, 550): The purity of elections is one of the most important and fundamental requisites of popular government. to banished the spectre of revenge form the minds of the timid or defenseless, to render precarious and uncertain the battering of votes, and lastly, to secure fair and honest count of the ballots cast, is the aim of the law. To accomplish these ends, Act No. 1582, was enacted. This law requires that only qualified electors shall be admitted to the polls; that they shall vote in absolute secrecy, and that the returns shall be justly compiled and announced, In its essential details, this law is counterpart of the ballot laws almost universally adopted within comparatively recent times in the United States, and is generically called by textwritters the Australian ballot law. xxx xxx xxx . . . The central idea of the Australian ballot law, as so often expressed in the cases, is to should the marking of the ballots in absolute secrecy. All the efforts to secure a free and untrammeled expression of the electors will leas up to the depart from that point. The accused, as already remarked, was an election inspector. To hold this office it was necessary for him to have certain qualifications. He had to be qualified elector of his precinct, of good character, not convicted of an offense involving moral turpitude, and able to read, write, and speak either English, Spanish, or the local dialect understandingly. the accused took an oath honestly and unjustly to administer his duties according to the Election Law without prejudice or favor toward any person, candidate, party, society, or religious sect. One of his functions was, in conjunction, with another inspector to prepare ballots for disabled persons. The made it his duty, and his duty only, with another inspector, to ascertain the wishes of the disabled voter and to prepare the ballot of the voter in proper form according to his wishes. (See sections 417-424, 453, Administrative Code of 1917.) The election inspector in giving assistance to a disable voter has but on function to perform, namely, the mechanical act of preparing the ballot. The exercise of any discretion as to the selection of candidate for the voter assisted is prohibited to the maker, and the substation of his own for the voter's choice in such selection is a flagrant violation of an official trust. (Patton vs. Watskins [1901], 131 Ala., 387; 90 Am. St. Rep., 43; Board vs. Dill [1910], 26 Okla., 104; Ann. Cas. [1912] B, 101; Re Prangley, 21 Ont. L. Rep., 54.) An inspector who fails to write upon the ballot the name or names expressly indicated by the voter is guilty of a fraud practiced against the voter and thus of a violation of the penal provisions of the Election Law. (U. S. vs. De la Serna and Callet [1909], 12 Phil., 672.)1awph!l.net Of course, an election officer is not responsible for a mere mistake in judgment but only for a willful disregard of duty. all that law requires of an election officer is the exercise of prudence, of intelligent deliberation leading him to judgment, and when he does that, although he does not live up to the law there is no crime, because there is no criminal intent. (See 15 Cyc., p. 344, citing numerous cases.) But when, as in the instant case, the election officer is given a specific duty to perform and, notwithstanding this duty, deliberately disregards the wishes of the voter, criminal intent exists. The color of the act determines the complexion of the intent. In the investigation of human affairs, whether connected with contract or crime, we are constrained to infer the motive from the act. The intent to affect the result of the election is properly presumed when unlawful acts, which naturally or necessarily have that effect, are proved to have been intentionally committed, or knowingly permitted, by those having charge of such elections." (U. S. vs. Carpenter [1889], 41 Fed., 330.) The election officer, who scorns the law which he is sworn to enforce, undermines the entire edifice of democratic institutions and is deserving of the severest condemnation. In the case which was decided by the first enunciated in the court and which, because of the doctrine enunciated in the decision, should be known to all, Mr. Justice Johnson said: Rarely are the court called upon to decide criminal cases which show a greater culpability on the party of an appellant than the facts in the present case. The appellant, by his own confession, has convicted himself of an attempt to defeat the will of the people in their participation in the affairs of their own self-government. the people of the Philippine Islands have been granted the right to select, by secret ballot, the men who shall make laws for them. They have been given a right to participate directly in the form of the most important and sacred of the right of the people in self-

government and one which must be most vigilantly guarded if a people desires to maintain for themselves and their posterity a republican form of government in which the individual may, in accordance with law, have a void in the form of his government. If the Republic are to survive and if the people are to continue to exercise the right to govern themselves and to directly participate in her affairs of their government by selecting their representatives by secret ballot, then the maxims of such a government must be left to the watchful care and reverential guardianship of the people. Eternal vigilance is the price paid by a free people for a continuance of their right to directly participate in the affairs of their government. Designing, ambitions, corrupt, and unscrupuluous politicians if the people a off their guard, will ingeniously and persistently encroach upon the rights of unwary people, and will finally undermine the very foundations of self-government and the right of the people. It behooves the people under a free government to prosecute to the limit, without stint or favor, every person who attempts to defeat, their direct participation by secret ballot, under the forms prescribed by law, in the affairs of their government. If nefarious practices of officials of the government, such as is described in the compliant in the present cae, are to be continued or permitted by those in authority, and punishment is not meted out speedily and severely upon those who rob the people of their political rights, the result is generally a revolution in which the people again repossess themselves of the jewels of personal and political liberty and the right to self-government, through blood and carnage. The defendant not only convicts himself out of his own mouth of an attempt to defeat the will of the people of this district in their effort to choose their representatives in the legislative branch of the government, but also violated his oath of office in which he asked God to help him honestly and justly to administer his duties as an inspector of elections without prejudice or favor towards any person, candidate, party, society, or religious sect, which oath must have been taken freely or without evasion or mental reservation whatsoever. (Section 516, Act No. 2657; section 419, Act No. 2711.) In addition to convicting himself of an attempt to violate the rights of the people, together with the violation of a solemn oath, he also convicts himself of the falsification of a public document, and might be punished for the latter offense in a manner very much more severe than for the crime for which he is being tried. (Articles 300 and 301 of the Penal Code, as amended by Act No. 2712.) In consideration of all of the foregoing we are of the opinion that the maximum penalty of the law should be imposed, Therefore, the sentence of the lower court is hereby revoked, and it is hereby ordered and decreed that the defendant and appellant be sentenced to be imprisoned for a period of one year and to pay a fine of P500 and costs, and in case of insolvency, to suffer subsidiary imprisonment for the payment of said fine. (U. S. vs. Itturrius [1918], 37 Phil., 762.) The law provides as a punishment for an election officer who fails to perform his official duties, imprisonment for not less than one month nor then one year or by fine of not less than P200 nor more than P500 or both. (Section 2639, Administrative Code of 1917.) In the decision above quoted, the maximum penalty was, for good reasons, imposed. There the facts were aggravated because the election officer had manipulated and changed the election totals. Herein, while the inner purpose of the defendant as just as bad, the result was not disastrous. However, believing that either the maximum or a penalty approaching the maximum, should always be imposed on election officers who violate law we must proceed to increase the sentence imposed by the lower court so that the defendant and appellant shall be condemned to six months imprisonment, and to pay a fine of P250, with subsidiary imprisonment in case of insolvency, and with the costs of both instances against him. So ordered.

6

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION A.C. No. 6711 July 3, 2007 MA. LUISA HADJULA, complainant, vs. ATTY. ROCELES F. MADIANDA, respondent. DECISION GARCIA, J.: Under consideration is Resolution No. XVI-2004-472 of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint for disbarment filed by herein complainant Ma. Luisa Hadjula against respondent Atty. Roceles F. Madianda. The case started when, in an AFFIDAVIT-COMPLAINT1 bearing date September 7, 2002 and filed with the IBP Commission on Bar Discipline, complainant charged Atty. Roceles F. Madianda with violation of Article 2092 of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility. In said affidavit-complaint, complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets. Continuing, complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant's account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant's promotion. According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER COMPLAINT3 with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No. 3019,4 falsification of public documents and immorality, the last two charges being based on the disclosures complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a disciplinary case was also instituted against her before the Professional Regulation Commission. Complainant seeks the suspension and/or disbarment of respondent for the latter's act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent's legal advice. In an order dated October 2, 2002, the IBP Commission on Bar Discipline required respondent to file her answer to the complaint. In her answer, styled as COUNTER-AFFIDAVIT,5 respondent denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common knowledge in the BFP. The relevant portions of the answer read: 5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYERCLIENT RELATIONSHIP that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the same, NOR listen to their stories or examine or accept any document. 9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover … where she has a child …. Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public records …. Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS. On October 7, 2004, the Investigating Commissioner of the IBP Commission on Bar Discipline came out with a Report and Recommendation, stating that the information related by complainant to the respondent is "protected under the attorney-client privilege communication." Prescinding from this postulate, the Investigating Commissioner found the respondent to have violated legal ethics when she "[revealed] information given to her during a legal consultation," and accordingly recommended that respondent be reprimanded therefor, thus: WHEREFORE, premises considered, it is respectfully recommended that respondent Atty. Roceles Madianda be reprimanded for revealing the secrets of the complainant. On November 4, 2004, the IBP Board of Governors issued Resolution No. XVI-2004-472 reading as follows: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and , finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the actuation of revealing information given to respondent during a legal consultation, Atty. Roceles Madianda is hereby REPRIMANDED. We AGREE with the recommendation and the premises holding it together. As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such

relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta,6 A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former's fees. Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.7 With the view we take of this case, respondent indeed breached his duty of preserving the confidence of a client. As found by the IBP Investigating Commissioner, the documents shown and the information revealed in confidence to the respondent in the course of the legal consultation in question, were used as bases in the criminal and administrative complaints lodged against the complainant. The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer. The seriousness of the respondent's offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent's ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality. IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is hereby REPRIMANDED and admonished to be circumspect in her handling of information acquired as a result of a lawyer-client relationship. She is also STERNLY WARNED against a repetition of the same or similar act complained of. SO ORDERED.

7

Brennan v. Brennan Annotate this Case 281 Pa. Superior Ct. 362 (1980) 422 A.2d 510 Linda BRENNAN v. David BRENNAN, Appellant. Appeal of Theodore BREAULT, Esquire. Superior Court of Pennsylvania. Argued November 16, 1979. Filed September 26, 1980. *363 Joseph J. Pass, Jr., Pittsburgh, for appellant. Sanford M. Aderson, Pittsburgh, for appellee. Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, MONTGOMERY and HOFFMAN, JJ. MONTGOMERY, Judge: This appeal places in issue the propriety of a contempt Order against a Defendant's counsel in a custody case. The *364 Order resulted from counsel's refusal to disclose to the Court and to the Plaintiff the whereabouts of the Defendant and the children who are the subjects of the custody proceedings. We are called upon to examine the scope of the attorney-client privilege in these circumstances. The record shows that on June 1, 1979, Plaintiff-Appellee Linda Brennan filed a Complaint against her husband, David Brennan, for custody of the two minor children of the parties, David Matthew Brennan, then 11 years of age, and Kelly Lynn Brennan, then 4 years of age. The Complaint alleges that the children resided in Allegheny County until May 27, 1979, when the father took the children and removed them from the jurisdiction, purportedly to reside in the State of Florida. Service of the Complaint in the case was made by Plaintiff by mailing a copy of the Complaint by certified mail, return receipt requested, as well as by ordinary mail, to the Defendant's last known residence.[1] The copy mailed by certified mail was returned unclaimed, but the copy sent by ordinary mail was not returned. Such service procedures satisfied Allegheny County Local Rule of Civil Procedure 1139.4, which provides: RULE 1139.4 SERVICE. (a) The complaint shall be served in any one of the following manners: (1) In accordance with Pennsylvania Rules of Civil Procedure 1504; or (2) By sending two copies of the complaint; one by certified mail, deliver to addressee only, return receipt requested and one by ordinary mail to the defendant's last known residential or business address; (3) If service is not accomplished by certified mail as provided in paragraph (2) above, and there is no personal appearance by defendant, then service must be accomplished as in paragraph (1) above, or as may be authorized by the court. Service shall be presumed *365 when certified mail is returned unclaimed and ordinary mail has not been returned. (4) Where a person to be served resides outside the Commonwealth, service shall be made as above and in addition thereto may be made in any manner prescribed by the law of the place where service is made; (5) When custody is sought, service shall also be made on all parents who are not a party to the action. (b) No notice to defend or plead is required, and no responsive pleading is required. On June 22, 1979, the Plaintiff filed a Petition to expedite the hearing date, which therefore had been set for October 11, 1979. She attached an affidavit to her Petition averring that the Defendant had advised her by telephone that he had received a copy of the Complaint. The lower court, on June 22, 1979, issued an Order setting a conciliation for July 2, 1979, directing both parties to appear, and directing the Defendant-Appellant to produce the children at the hearing. Subsequently, the Plaintiff, on July 5, 1979, filed an affidavit which, in pertinent part, declared that on June 21, 1979, she had advised the Defendant of the July 2, 1979 conciliation which had been ordered. Thus, the Appellee asserted by affidavit that she advised her husband of the conciliation date before her Petition for expedited hearing was even filed and the court set that date for the conciliation. Further, one Ethel Matthews, apparently the Plaintiff's mother, entered a second affidavit on record declaring that she had notified the Defendant of the conciliation on June 20, 1979, two full days before the Plaintiff's Petition was filed, and the conciliation date was fixed by the lower court. The Defendant failed to appear or produce the children at the scheduled conciliation on July 2, 1979, and on that date the Court awarded temporary custody of the children to the Plaintiff. No further events concerning the case appear of record until October 11, 1979, when Attorney Theodore Breault, a member of the Allegheny County Bar, entered his appearance on behalf of the Defendant. At that time, Attorney Breault presented a Motion for Continuance on *366 behalf of the Defendant. In this Motion it was alleged that the Defendant only found out about the hearing by chance a few days earlier, had not been provided notice under the Uniform Child Custody Jurisdiction Act, and also alleged that there was a lack of in personam jurisdiction over Defendant. At the October 11, 1979 hearing, the Plaintiff testified that the Defendant had received a copy of the original Complaint in the case which had been sent by ordinary mail, and further, that Defendant had acknowledged in several telephone conversations that he had received notice of the October 11, 1979 hearing date. During the hearing, Attorney Breault was asked by the Court to reveal the home address and telephone number of the father as well as the name and address of the school the children were attending. Mr. Breault refused to provide such information, asserting that his client had specifically requested that he not do so. Mr. Breault grounded his refusal on the attorney-client privilege. Breault did, however, provide a business address and telephone number for his client. Following the hearing, the lower court issued an order requiring Attorney Breault to disclose by October 15, 1979, the father's business address and telephone number, his home address and telephone number, and the name and address of the childrens' school. A hearing was set for October 15, 1979. At the hearing on October 15, 1979, Attorney Breault continued his refusal to reveal the home address and telephone number of the Defendant or the identity or location of the school then attended by the children. He did, however, provide the same business address and telephone number which he had previously furnished. Following the hearing, the Plaintiff petitioned the Court to enter a Rule to Show Cause why Attorney Breault should not be held in contempt for his failure to comply with the Court's Order of October 11, 1979 for disclosure. The lower court made the rule returnable on October 19, 1979, at which time a hearing was scheduled. *367 On October 19 Attorney Breault appeared at the hearing and again respectfully refused to divulge the information demanded by the Court, again relying primarily upon the attorney-client privilege. Attorney Breault, then represented by his own counsel, waived any additional hearings that may have been procedurally required prior to the adjudication of contempt. The lower court then entered an Order finding Attorney Breault in civil contempt of court, and imposed the sanction of a $100 per day fine, for the benefit of the Plaintiff, said fine to be increased by $100 per day each succeeding week until the information concerning the Defendant and the children was revealed.

The lower court denied Attorney Breault's request for a supersedeas but on October 23, 1979, upon an appeal by Attorney Breault, this Court granted a supersedeas and simultaneously advanced the argument on this appeal in order to expedite review. The specific issue presented by this appeal involves a question of first impression in the appellate courts in our Commonwealth.[2] We are called upon to decide whether as a general principle, the attorney-client privilege may prevent a court from compelling an attorney to disclose his client's address, when that client has specifically requested counsel to maintain confidentiality as to that information. Of *368 course we are also requested to determine, in particular, whether the facts of record in the instant case may qualify for the application of the general principle. The attorney-client privilege, protecting the confidentiality of information passed by a client to his attorney, is well-established in our law. It has been recognized in our statutes and rules of conduct, as well as being a fundamental concept in our body of common law. The Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, 42 Pa.C.S.A. § 5928, provides the statutory basis for the privilege. It states: In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. This statute is substantially a reenactment of the Act of May 8, 1887, P.L. 158, No. 89, § 5(d), 28 P.S. § 321, which provided: Nor shall counsel be competent or permitted to testify to confidential communications made to him by his client or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client. Commenting upon that section of the law, the Federal District Court for the Western District of Pennsylvania noted that the purpose underlying the law was to foster an open attorney-client dialogue. See In re Westinghouse Electric Corp. Uranium Contracts Litigation, 76 F.R.D. 47 (D.C.W.Pa. 1977). The attorney-client privilege also finds support in the published rules of conduct governing those who practice law before the courts in our Commonwealth. The Pennsylvania Rules of Civil Procedure had originally adopted the American Bar Association Canons of Ethics as the standards of conduct for attorneys in our Commonwealth. Pa.R.C.P. 205, adopted September 8, 1938, effective March 20, 1939, 332 Pa. xlvi. The Canons, which had been *369 promulgated in 1908, were superceded by the Code of Professional Responsibility, adopted by the American Bar Association on August 12, 1969, and amended February 24, 1970. Our Pennsylvania Supreme Court adopted the Code (to replace the Canons) by Order dated May 20, 1970 and ordered that it be published in the same manner as our rules of court. See 438 Pa. XXV (1970). The Code was incorporated, in full, in Pa.R.C.P. 205, as amended February 27, 1974. See 455 Pa. lvii. As a result the Code of Professional Responsibility and its predecessor, the Canons of Professional Ethics, had the force of statutory rules of conduct in our Commonwealth. See Slater v. Rimar, 462 Pa. 138, 338 A.2d 584 (1975); Schofield Discipline Case, 362 Pa. 201, 66 A.2d 675 (1940). On June 28, 1976, the Supreme Court redesignated Rule 17 of the Supreme Court as the Pennsylvania Rules of Disciplinary Enforcement, to take effect 120 days thereafter, on October 27, 1976. See 464 Pa. LXXXIX et seq. Rule 102 of the Rules of Disciplinary Enforcement defined "Disciplinary Rules" as constituting the provisions of the Code of Professional Responsibility. See 464 Pa. XC, as well as the April 29, 1977 amendment thereto, at 469 Pa. XXVII. Rule 203 of the Rules of Disciplinary Enforcement requires persons subject to the Rules of Disciplinary Enforcement to obey the said "Disciplinary Rules", which are actually constituted by the Code. See 464 Pa. XCIII. As a result of the incorporation of the Code of Professional Responsibility into the Rules of Disciplinary Enforcement, Rule 205 of the Rules of Civil Procedure was rescinded as of October 27, 1976. See 465 Pa. XL; see also the Explanatory Note of the Supreme Court's Civil Procedural Rules Committee at 465 Pa. XLI. Canon 4 of the Code of Professional Responsibility is of particular significance in the recognition of the attorney-client privilege, insofar as it may be applicable in this case. Canon 4 states: "A Lawyer Should Preserve the Confidences and Secrets of a Client." The Ethical Considerations which follow each Canon of the Code serve as practical guides in the understanding of the Canons. Ethical *370 Consideration 4-1 is deserving of attention in this appeal. It provides: Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance. Thus, in any analysis of the attorney-client privilege, we must recognize that our Code of Professional Responsibility provides strong support for the concept of a legally protected confidentiality for client-attorney discourse. The privilege has also been firmly established in our common or decisional law. One noted authority has stated that the privileged nature of communications between an attorney and his client is the oldest testimonial privilege known to law. 8 Wigmore on Evidence § 2290 (3rd Ed. 1940). In an excellent Opinion in the case of Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689 (1976), Judge Cercone, now our President Judge, detailed the history of the privilege, as well as the rationale for its existence.[3] We do not deem it necessary to repeat an analysis of the history of the privilege in this Opinion in view of its recent explanation in the Cohen case, but we do note that we are mindful of its long-established place in our legal system. *371 Our Supreme Court has also discussed the rationale for the rule of confidentiality in communications between an individual and his attorney. In Slater v. Rimar, Inc., Supra, the Supreme Court quoted with approval § 2297 of the Second Edition Of Mecham on Agency (Volume 2): `The purposes and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosures to the attorney of the client's objects, motives and acts. This disclosure is made in the strictest confidence, relying upon the attorney's honor and fidelity. To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal adviser for the purpose of obtaining

8

his professional aid or advice, shall be strictly privileged; that the attorney shall not be permitted, without the consent of his client, and much less will he be compelled-to reveal or disclose communications made to him under such circumstances.' 462 Pa. 148, 338 A.2d at 589. The purpose for the privilege was also discussed more recently in Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1979). There the Court explained that the privilege is not concerned with prejudice, the ascertainment of the truth,[4] or *372 the reliability of attorney-client communications, but only to foster a confidence between an advocate and his client that will lead to a trusting and open dialogue. See 409 A.2d at 1362. A recognition of this rationale by our Court is important in the consideration of any claim that an attorney should be compelled to disclose information which may be argued to be confidential. Of course we must also be cognizant that the privilege is subject to limits and exceptions. For example, we have stated that the privilege exists only to aid in the administration of justice, and when it is shown that the interests of the administration of justice can only be frustrated by the exercise of the privilege, the court may require that the communication be disclosed. See Cohen v. Jenkintown Cab Company, Supra, 238 Pa.Super. at 464, 357 A.2d at 693-694. Also, it has been repeatedly held that when the advice of counsel is sought in the assistance of the commission of a continuation of criminal or fraudulent activity, the privilege of the protection is lost. See Nadler v. Warner Company, 321 Pa. 139, 184 A. 3 (1936); Commonwealth v. Trolene, 263 Pa.Super. 303, 397 A.2d 1200 (1979); In re Westinghouse Electric Corp. Uranium Contracts Litigation, Supra. However, in defense of the privilege, we must be mindful of the concept that the party seeking disclosure has the burden of establishing a prima facie case that the attorney was used to promote an intended or continuing fraudulent or criminal activity. See Nadler v. Warner Company, Supra; In re Westinghouse Electric Corp. Uranium Contracts Litigation, Supra. Moreover, in making the determination of whether the interests of justice may be frustrated by the exercise of the privilege, the court should resolve all doubts in favor of non-disclosure, so that a client should not be chagrined to learn that the confidences that he conveyed to his attorney have been revealed to his detriment and without his consent. Cohen v. Jenkintown Cab Company, Supra. *373 In our analysis, we have to also recognize that not every item of information obtained by an attorney from a client may be considered to be qualified for the protection of the privilege. It has been held that the privilege applies to a communication, assuming it was conveyed in confidence to an attorney by a client in a client-attorney relationship, only when the communication relates to a fact of which the attorney was informed for the purpose of securing either a legal opinion, legal services, or assistance in some legal proceeding. Further, it may not have been communicated for the purpose of committing a crime or tort and the client must not have waived the privilege. See Bird v. Penn Central Co., 61 F.R.D. 43 (D.C.E.Pa. 1973); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 294 F. Supp. 1148 (D.C.E.Pa. 1969). With all of these concepts in mind, we turn to the specific issue presented by the case on appeal. As earlier noted, the general question of the propriety of a forced disclosure of the defendant husband's address from his lawyer appears to be a question of first impression on the appellate courts of our Commonwealth. However, similar situations have been presented to courts in other jurisdictions. The lower court in the instant case placed reliance upon the rationale of the Surrogate's Court of Bronx County, New York in its decision in In the Matter of Jacqueline F., 94 Misc.2d 96, 404 N.Y.S.2d 790 (1978). In that case, an application was filed for a contempt order against a former guardian of an infant for failing to obey a court order revoking the guardianship and directing the return of the child to its natural parents. The guardian's attorney was directed to disclose his knowledge as to the address and whereabouts of his client. While such factual circumstances would seem to support the actions of the Allegheny County Court in the instant case, we find a more detailed analysis of the New York case to be appropriate. The New York Court stated that as a general rule an attorney may be compelled to disclose the name and address of his client on the theory that his knowledge as to these *374 matters did not flow ". . . from a confidential communication." In the Matter of Jacqueline F., Supra, 404 N.Y.S.2d at 795. However, the court further explained that there was an exception to that general rule: "An attorney may validly assert the privilege as to his client's name or address in the limited instance where the client intended such information to be confidential and further provided that protecting this cloak of secrecy will not aid in carrying out an unlawful purpose. In the Matter of Jacqueline F., Supra, 404 N.Y.S.2d at 795. The Surrogate's Court found that the facts of that case did not fit within the bounds of the exception, for the guardian had exhausted all legal rights, the case was then complete, and the attorney's refusal to disclose the location of the client really aided in the continued evasion from compliance with the Court's order. The New York Court's statement of the general rule, as well as the exception, appears to be correct. A comprehensive annotation in the Third Edition of the American Law Reports analyzes the views of courts in many jurisdictions regarding whether an attorney may be compelled to disclose a client's address. See 16 A.L.R.3d 1047, et seq. There it is stated that the address of a client is in many cases not privileged information simply because the attorney became aware of it as a collateral fact; however, it is well settled that where the client's address is communicated to the attorney in his professional capacity, the information is generally privileged. 16 A.L.R.3d at 1051. Our own review of cases from other jurisdictions reveals a wide diversity of opinion regarding whether a client's address is entitled to the protection of the privilege. For instance, in McDonald v. Berry, 243 S.C. 453, 134 S.E.2d 392 (1964), the Supreme Court of South Carolina was presented with a situation wherein the attorney for adoptive parents in an action attacking an adoption decree had been ordered by the lower court to divulge the names and address of his clients. The Supreme Court held that the order was improper and noted the general rule that an address given confidentially *375 by a client to an attorney while consulting him in a professional capacity was a privileged communication. This general rule was followed in: Re Heile, 65 Ohio App. 45, 29 N.E.2d 175, 177 (1939) (where the matter was included in dictum, but the privilege as to a client's address was noted to exist even where the information was given merely with a view towards establishing an attorney-client relationship); State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973) (where the Supreme Court of Kansas cited 97 C.J.S. Witnesses, § 286 P. 812, for the general rule that an address given confidentially by a client to an attorney while consulting with him in a professional capacity is a privileged communication); Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333 (Mo.App. 1968) (where the Court recognized the general rule that where the client give his concealed address to his attorney in confidence, the attorney would not be compelled to disclose it, except to prevent the furtherance of a crime of fraud).[5] Finally, in Ex parte Schneider, 294 S.W. 736, 738 (Mo.App. 1927), the Court also stated the same general rule:

[A]n address, given by a client to an attorney while consulting him in a professional capacity on a business matter, for the purpose of enabling the attorney to communicate with the client in respect thereto, is a privileged communication. (Citing authority.) If the client's residence has been concealed (as here), or if the client is in hiding for some reason or other, and the attorney knows his address only because the client has communicated it to him confidentially as his attorney for the purpose of being advised by him, and has not communicated it to the rest of the world, then the client's address is a matter of professional *376 confidence, which the attorney may not be required to disclose. In view of the firm establishment of the privilege in the statutes, Code of Professional Responsibility, and decisional law of our Commonwealth, and in light of the prevailing general rule of privilege as to client's addresses in other jurisdictions, we find that Attorney Breault's reliance upon the attorney-client privilege was appropriate in this case. He asserted that when his client furnished his address, he asked Attorney Breault to keep the information confidential. In these circumstances, the prevailing rule would hold such information to be privileged, unless the exercise of the privilege either operates to permit or continue a crime or fraud or is clearly shown to be frustrating the administration of justice. As noted earlier, under Pennsylvania law, it is the party seeking to overcome the privilege who has the burden of establishing a prima facie case that the party asserting the privilege is committing a crime or fraud or continuing the same in exercising the privilege, or that the interest of justice is frustrated by the exercise of the privilege. On the basis of the record before us, we cannot conclude that the Plaintiff wife has met her burden in either regard. The lower court did not receive any reliable testimony or evidence to indicate a crime or fraud, and made no finding that the same had been proved. Nor can we find clear evidence, on the record before us, that it has been demonstrated beyond doubt that the interests of justice have been frustrated, so as to preclude the exercise of the privilege. The court merely held that it had the power to compel the attorney to disclose his client's whereabouts, under the holding of the New York court in In re Jacqueline F., Supra. The lower court characterized this case as one of child-snatching by the Defendant. On the record before us, we cannot agree that such a situation is evident. While the Court ordered the Defendant father to produce the children for the conciliation in July, 1979, the affidavits submitted by Plaintiff create more doubt than assurance that the Defendant *377 was ever served with notice of the July 2, 1979 conciliation. There is no evidence in the record to indicate that he was served with notice of the Court's Order of July 2, 1979, awarding temporary custody to the Plaintiff. The lower court has not ruled on his motion contesting jurisdiction. On this record we cannot find that his custody of his children is in violation of any proper custody order. In short, we find the present record insufficient to support the Plaintiff's burden of showing either a crime or fraud, or a clear breach of the interests of justice sufficient to overcome the privilege advanced by defense counsel regarding his client's address, or to support the finding of contempt by the lower court. The Order of the lower court adjudging Attorney Breault in contempt must be reversed, and the case remanded to the lower court for further proceedings. Upon remand, the lower court will, inter alia have to address the merits of the purported Motion for Continuance filed by the Defendant. While captioned as a Motion for Continuance, we note that the document includes factual averments verified by an affidavit filed by Attorney Breault, and also contains a challenge to the court's in personam jurisdiction. It appears anomalous that the Defendant contests in personam jurisdiction, yet refuses to permit his counsel to disclose his correct current address. In further proceedings, after issues concerning jurisdiction are resolved, the Plaintiff may desire to present evidence to attempt to establish that a crime or fraud is being advanced by the exercise of the privilege by the defense as to Attorney Breault's knowledge of Defendant's address. Further, Plaintiff may attempt to demonstrate that the interests of justice have clearly been frustrated by the exercise of the attorney-client privilege in this case, in order to overcome the rule favoring nondisclosure. Moreover, the lower court may deem it appropriate to appoint separate counsel for the children in this case. See Lewis v. Lewis, 271 Pa.Super. 519, 414 A.2d 375 (1979). Of course, any resolution of such matters would not be appropriate by this Court in the context of the instant appeal. *378 We merely hold that the contempt finding and resultant Order, involving defense counsel's refusal to disclose his client's address, were in error. Reversed and remanded for further proceedings consistent with this opinion. HOFFMAN, J., files a concurring opinion in which SPAETH, J., joins. PRICE, J., files a dissenting opinion. HOFFMAN, Judge, concurring: Although joining in the majority opinion, I believe it appropriate to comment further on the specific nature of the attorney-client privilege. That privilege represents a time-tested accommodation between the client's welfare and interest and the effective administration of justice. The comment to Rule 1.7 of the proposed ABA Model Rules of Professional Conduct illustrates the nature of this accommodation: Defining the scope of the duty to disclose a client's confidences is most difficult. On the one hand, the client expects that matters imparted to a lawyer will be kept confidential. On the other hand, in becoming privy to client confidences a lawyer may foresee that the client intends serious and perhaps irreparable harm to another person. To the extent a lawyer is prohibited from making disclosure, the interests of the potential victim are sacrificed in favor of preserving the client's confidences even though the client's purpose is wrongful. However, to the extent a lawyer is required to disclose a client's purposes, the client may be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. Any rule governing disclosure of threatened harm involves balancing the interests of one group of potential victims against those of another. On the assumption that lawyers generally fulfill their duty to advise against the commission of a deliberately wrongful act, the public is better protected if full disclosure by the client is encouraged than if it is inhibited. *379 As that comment indicates, courts must be mindful that limitations on the privilege may result in a client's reluctance to disclose relevant information to his attorney. Nevertheless, courts must balance the interests of the client against the potential harm to others. This is particularly so in a child custody case where the child's best interests are of paramount importance. Consequently, if the party seeking to overcome the privilege establishes that the child's interests require disclosure of the information which the client asserts is privileged, the privilege must yield. Because the present record is insufficient to permit us to make that determination, I agree with the majority's decision to remand the case for further proceedings. SPAETH, J., joins in this opinion. PRICE, Judge, dissenting: While I agree with the majority that the sanctity of the attorney-client relationship should be zealously protected, I disagree that disclosure in the instant case would upset the policy underlying

9

the rule of confidentiality and conclude that non-disclosure would have the effect of frustrating the administration of justice. Preliminarily, I must take issue with the majority's statement that there is a "prevailing general rule of privilege as to client's addresses in other jurisdictions . . . ." (at 516). To the contrary, the general rule is that the address of a client is in most instances irrelevant to the purpose for which the attorney was retained and is deemed collateral to the substantive issues raised in the litigation. See 8 Wigmore, Evidence § 2310 (McNaughton rev. 1961) (information must be "part of the purpose of the client" in obtaining legal advice). Thus, it is generally held that such information "did not flow from a confidential communication." In re Jacqueline F., 94 Misc.2d 96, 103, 404 N.Y.S.2d 790, 795 (1978), aff'd, 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884 (1979). As such, the customary rule is that a party must be apprised of the address of his adversary in any legal proceeding. See cases collected at Annots. 114 A.L.R. 1321, 1328-33 (1938) and 16 A.L.R.3d 1047, 1062-68 (1967). *380 As the majority correctly notes, however, such information may be held confidential if the client expressly requested that it remain inviolate and would not have revealed the information but for the assurance of confidentiality. The rationale for this subjective test, see Alexander v. Queen, 253 Pa. 195, 94 A. 1063 (1916); 8 Wigmore, Evidence § 2291 (McNaughton rev. 1961); Disciplinary Rule 4-101; American Bar Association Committee on Ethics and Professional Responsibility, Formal Opinion 155 (1936). Informal Opinion 1188 (1971), is to implement the underlying policy of the attorney-client rule of confidentiality, which is to encourage litigants to seek professional advice under an assurance that they may truthfully divulge all information to their legal adviser subject to the cloak of confidentiality. See, e.g., Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976); Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689 (1976). But even this subjective test has its limitations, and I submit that disclosure in the instant case would not violate the policy underlying the rule of confidentiality. As stated in Dike v. Dike, 75 Wash. 2d 1, 11, 448 P.2d 490, 496 (1968): "As the privilege may result in the exclusion of evidence which is otherwise relevant and material, contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts, the privilege cannot be treated as absolute; but rather, must be strictly limited to the purpose for which it exists." See In re Jacqueline F., 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884 (1979). In any custody dispute, a party seriously and honestly intending to adjudicate the pertinent issues on their merits according to well-founded legal precepts will not be remiss to divulge the location of himself and the children and the name and address of the school that the children attend. Certain of this information is required under the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P.L. 29, § 10, 11 P.S. § 2310 (Supp. 1979-80) and is vitally necessary to permit the court to resolve the ultimate issue as to the *381 best interests of the children. Moreover, even the majority acknowledges that the position adopted by appellant "appears anomalous" in that he has instructed his counsel to contest the "in personam jurisdiction [of the Allegheny County Court of Common Pleas], yet refuses to permit his counsel to disclose his correct current address." (at 517). In essence, appellant wishes to retain custody on his own terms and to utilize the existing judicial machinery to accomplish his purpose of challenging the in personam jurisdiction of the court, yet refuses to cooperate by divulging relevant information that would permit the court to fulfill its proper function in this custody case. By submitting his appearance to the hearing court[1] to invoke its process to dismiss the suit for lack of jurisdiction, appellant became bound to supply to the court information for that determination and the ultimate determination as to the best interests of the child should in personam jurisdiction be established. Thus, although the information here in question would appear to satisfy the test of confidentiality as a result of appellant's self-serving statement that it remain sacrosanct, I would hold that disclosure would not upset the policy behind the confidentiality rule and would not have the effect of discouraging serious litigants from retaining legal counsel and truthfully disclosing all information necessary for rendering proper legal service. Finally, I disagree with the majority's determination that the instant proceeding does not establish a clear showing that the administration of justice will be impeded by the withholding of this vital information. Indeed, as I read the opinion, the majority merely concludes that because of the absence of a "proper custody order" (at 516), the present *382 case is not sufficiently "ripe" to establish the frustration in the administration of justice, but that upon remand the continued exercise of the attorney-client privilege may have that effect. In this respect, it should be noted that the complaint in custody was filed over one year ago on June 1, 1979, and averred that the children had been removed from the partys' joint custody by appellant. An initial hearing on the complaint was scheduled for October 11, 1979, but upon petition by appellee, an expedited conciliation hearing was set for July 2, 1979, during which an order was entered awarding temporary custody to her. While a question does exist whether appellant received actual notice of the July 2, 1979 conciliation, the hearing court apparently determined that notice had been given and its order emanating from that hearing remained in effect until it was adjudicated to have been entered in error. See Act of June 30, 1977, supra, § 13, 11 P.S. § 2313. While the majority engages in de novo speculation that notice was not given and that the temporary custody order of July 2, 1979, is without effect, I believe that we should not delay our ruling in light of appellant's avowed intent to retain custody and not reveal the information to the court. Moreover, and perhaps most importantly, it should be noted that the hearing court declined to enter a supplemental "proper"[2] custody order at the October 11, 1979 hearing only because it felt that the prior order of July 2 remained in effect and would not be enhanced an additional order. Thus, over one year subsequent to the filing of the initial complaint, appellant continues to thwart the process of the court by refusing to provide information pertinent to its adjudication of the issues of in personam jurisdiction and the best interests of the children. Therefore, I would hold that in its present posture this proceeding is ripe for determination that, through his actions, appellant has succeeded in frustrating the interest of justice, and thus the information is not subject to the rule of *383 confidentiality of attorney-client communications. Indeed, courts in other jurisdictions have expressly or implicitly concluded that in custody disputes, the withholding of the information here in question serves to frustrate the administration of justice and is not privileged information. See Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333 (Mo. App. 1968); In re Jacqueline F., supra; Falkenhainer v. Falkenhainer, 198 Misc. 29, 97 N.Y.S.2d 467 (1950); Dike v. Dike, supra; cf. Ex parte Schneider, 294 S.W. 736 (Mo.App. 1927) (dicta); Tierney v. Flower, 32 App.Div.2d 392, 302 N.Y.S.2d 640 (1969) (adoption case). In their opinion, the majority seeks to distinguish the principal case relied upon by the hearing court, In re Jacqueline F., supra, in part by noting that therein the custody proceeding had run its course and a final custody decree had been entered. Thus, when the attorney refused to divulge the whereabouts of his client, the administration of justice was frustrated because the refusal

prevented the enforcement of the final decree. The majority draws a distinction by concluding that no such result would obtain in the instant case because a final adjudication has not been entered. Unfortunately, by engaging in speculation the majority undercuts the efficacy of the July 2, 1979 temporary custody order and permits appellant to continue to impede the hearing court in its avowed purpose of awarding temporary custody to appellee. More important, however, is the implied ruling of the majority that the administration of justice will be thwarted only when there is a final decree of custody, but not when the information is withheld during the proceeding to determine custody, precisely the point when such information will be necessary to the court in formulating a decree to effectuate the best interests of the children. In fact, at least one court has held that the current pendency of the proceeding is an important factor in determining that the information is vital to the administration of justice. See Dike v. Dike, supra, relying upon, In re Schneider, supra; cf. Tierney v. Flower, supra (adoption case). *384 Accordingly, I would hold that by his actions appellant has impeded the administration of justice and that disclosure in the instant case would not violate the policy underlying the attorneyclient rule of confidentiality. The order of October 19, 1979, should be affirmed. NOTES [1] That residence was at the same address as the residence of the Plaintiff, according to the allegations in the Complaint. [2] In the case of In re Philadelphia & Reading Coal & Iron Co., 27 F. Supp. 256 (1939), the Federal District Court for the Eastern District of Pennsylvania held that an attorney could be compelled by the court to disclose the identities and addresses of clients. That case involved reorganization proceedings under the Federal Bankruptcy Act. The attorney involved had filed numerous motions and petitions which had resulted in complicated and lengthy proceedings. An attorney for the Securities and Exchange Commission sought to have the attorney in question disclose who he represented. In holding that the Court enjoyed the inherent power to compel the disclosure of such information, the District Court made no mention of the attorney-client privilege, and we can only assume that the privilege was never raised as an issue in the case. Thus, we cannot conclude that the case holds any precedential value in the context of the instant appeal. The attorney-client privilege issue is present in another case now pending before this Court, where it was also sought that an attorney disclose, inter alia, the address of a client. See Rupel v. Bluestein, 280 Pa.Super. 65, 421 A.2d 406 (1979). [3] Over the course of centuries, the rationale for the privilege has changed from time to time. [4] Other courts have commented differently on the importance of the search for truth in the consideration of rulings regarding attorney-client privilege. In Fisher v. U.S., 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976), the Supreme Court recognized that the purpose of the privilege is to encourage the client to make a full disclosure to his lawyer and also noted that this desired result would not eventuate if the client realized his information might be more readily obtained from his lawyer than from the client himself. However, while the Supreme Court was cognizant of the importance of the privilege, it also stated that since the privilege has the effect of withholding relevant information for the factfinder, it should be applied only where necessary to achieve its purpose. Accordingly, the Supreme Court stated that the privilege protects only those disclosures necessary to obtain informed legal advice, which might not have been made absent the privilege. [5] In the Jafarian-Kerman case, Supra, the Court found that the client, a defendant in a custody case, had himself used the court to seek custody of his child when he sought and obtained an order granting him limited custody of the child pending the completion of divorce proceedings. After gaining custody of the child under such proceedings, he left the United States surreptitiously with the child, contrary to the Order of the Court. The court held that the privilege as to the address could not be maintained in view of the brazen violation of the Court's orders. [1] In his brief submitted to this court, appellant characterizes the October 11, 1979 Motion for Continuance as a "special appearance" for the purpose of contesting in personam jurisdiction. We note, however, that special appearances have been abolished in this Commonwealth, see Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965), and the only method for challenging jurisdiction is by way of preliminary objections filed within twenty days subsequent to service of the complaint, a procedure that appellant failed to utilize. See Pa.R.C.P. Nos. 1017(b), 1026. [2] The hearing court found that service of the complaint and notice of the October 11, 1979 custody hearing were given to appellant in accordance with Allegheny County Local Rule 1139.4, and thus any order entered at that hearing would have been "proper."

10

733 F. Supp. 95 (1990) UNITED STATES of America v. Fausto DEL CARPIO-COTRINA. No. 89-388-CR. United States District Court, S.D. Florida. March 21, 1990. Joel DeFabio, Miami, Fla., for Del Carpio-Cotrina. *96 Jeffrey S. Weiner, Benjamin S. Waxman, David S. Mandel, Mary V. King, Asst. U.S. Attys., for the U.S. MEMORANDUM ORDER SCOTT, District Judge. This cause is before the Court to determine whether defense counsel Joel DeFabio has breached his ethical obligations by failing to disclose to the Court that the Defendant Fausto Del Carpio-Cotrina had jumped bond and would not appear to stand trial on criminal charges. I. BACKGROUND On June 30, 1989, Fausto Del Carpio-Cotrina was indicted by the grand jury on charges of conspiracy to possess with intent to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846. Steve Bronis appeared as defense counsel at the arraignment held on July 3, 1989. The U.S. Magistrate released Del Carpio on a $25,000 corporate surety bond, to run concurrent with a pre-existing $50,000 corporate surety bond. In addition, Del Carpio and his wife posted a $200,000 personal surety appearance bond. On July 10, 1989, the Court set the case for a trial date of July 26, 1989. On July 18, 1989, Joel DeFabio filed his appearance and moved to be substituted as defense counsel. DeFabio stated that he had been retained by Del Carpio on July 13, 1989. The same day, DeFabio moved for a continuance of the trial date.[1] On July 26, 1989, the Court conducted a hearing on the Defendant's motion to substitute counsel. Bronis and Del Carpio were present. DeFabio had a scheduling conflict and Leonard Farr appeared in his place. Del Carpio expressed his preference for DeFabio as defense counsel. Accordingly, the Court granted the motion to substitute counsel and continued the trial date to August 28, 1989. DeFabio attempted to contact Del Carpio on several occasions to inform him of developments in the case, but was unsuccessful. During the first week of August 1989, Del Carpio's wife telephoned DeFabio and told him that Del Carpio had left the residence with a suitcase and that she did not know where he had gone. DeFabio did not advise the Court of these events. Instead, three days before trial, at the calendar call, DeFabio moved for a continuance of the trial date. As grounds for the motion, DeFabio represented that he had a special trial setting in another matter in Tampa. The Court initially denied the motion, but then reset the trial date to the week of September 5, 1989 due to the Government's scheduling conflicts. On September 1, 1989, at a second calendar call, Farr, again appearing for DeFabio, informed the Court that DeFabio had been unable to reach Del Carpio and did not expect him to appear for trial. The Court issued an Order to Show Cause ordering DeFabio to explain why he had failed to advise the Court that Del Carpio would not appear for trial. At a hearing held on September 6, 1989, DeFabio argued that he was never certain that his client would fail to appear, and therefore, under the attorney-client privilege and ethical rules governing attorneys, he had no duty to notify the court of his client's disappearance. After the hearing, the Court ordered the Government to brief the issue, and we gave DeFabio the opportunity to respond. DeFabio, through the National Association of Criminal Defense Lawyers, filed a memorandum in response. The Court has carefully considered the arguments of counsel and we are fully cognizant of the seriousness of the issues raised. With that caveat, we proceed to the legal analysis II. DISCUSSION

A. Legal Standard Federal district courts possess "the inherent power to protect the orderly administration *97 of justice and to preserve the dignity of the tribunal." Kleiner v. First National Bank, 751 F.2d 1193, 1209 (11th Cir. 1985). Because attorneys are officers of the court, a district court is "necessarily vested" with the authority to control attorneys' conduct and impose reasonable sanctions on "errant lawyers" practicing before it. Id.; United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir.1976). Moreover, "a district court is obliged to take measures against unethical conduct occurring in connection with any proceeding before it." Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir.1980); Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir.1976). This is true even though grievance procedures are otherwise available. Musicus, 621 F.2d at 744. In determining whether an ethical violation has occurred, the Court should look to the controlling ethical principles of the forum state for guidance. The Rules of Disciplinary Enforcement for this district[2] direct the Court to apply the ethics rules of the State of Florida in matters concerning attorney misconduct.[3] "As the legal profession's own source of ethical standards, [state ethics rules] carr[y] great weight in a court's examination of an attorney's conduct before it." Woods, 537 F.2d at 810. However, the Court should also strive to "preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests." Id. The issue before the Court is whether DeFabio had an obligation to disclose that Del Carpio had jumped bond and did not intend to appear for trial. Two of the Rules Regulating the Florida Bar are relevant to this issue.[4] Rule 4-1.6(b) of the Rules Regulating the Florida Bar, known as the confidentiality rule, governs disclosure of information learned in the course of the attorney-client relationship.[5] The confidentiality rule provides: (a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraphs (b), (c), and (d) unless the client consents after disclosure to the client. (b) A lawyer shall reveal such information to the extent the lawyer believes necessary: (1) to prevent a client from committing a crime. Florida Rule 4-1.6(b), Confidentiality of Information.[6] *98 Rule 4-3.3 governs the lawyer's duty of "candor toward the tribunal." Under Rule 4-3.3: (a) A lawyer shall not knowingly: (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(b) The duties stated in paragraph (a) ... apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6. Florida Rule 4-3.3, Candor Toward the Tribunal.[7] Thus, if a lawyer learns in the course of representation "that a client intends prospective conduct that is criminal," the lawyer "shall reveal information in order to prevent such consequences." Florida Rule 4-1.6, Comment. In addition, the lawyer must disclose confidential information when necessary to avoid assisting a criminal or fraudulent act by the client. Florida Rule 4-3.3(a) (2). B. Analysis The Court has been unable to find any reported decisions addressing whether an attorney has a duty to advise the court that the client has jumped bond and does not intend to appear for trial. The Florida Bar has withdrawn its opinion on the issue for reconsideration. [8] However, the relevant ethical principles have been interpreted in the analogous context of client perjury. Perjury is similar to bail-jumping in terms of ethical considerations because both crimes may interfere with the administration of justice. In addition, for both crimes, the lawyer may learn of the client's intent before the crime has been committed. At that point, as an officer of the court, the lawyer must inform the court of the client's criminal or fraudulent intent. This is especially true if counsel's silence will help the client commit the crime or fraud. Thus, Florida Rules 4-1.6(b) (duty to disclose future crimes) and 4-3.3(a) (2) (duty of candor toward tribunal) apply equally to both situations. The definitive case on client perjury is Nix v. Whiteside, 475 U.S. 157, 166, 106 S. Ct. 988, 994, 89 L. Ed. 2d 123 (1986). In Nix,the United States Supreme Court considered "the range of `reasonable professional' responses to a criminal defendant client who informs counsel that he will perjure himself on the stand." The Supreme Court held that "an attorney's duty of confidentiality ... does not extend to a client's announced plans to engage in future criminal conduct." Id. at 174, 106 S. Ct. at 998. Nix has been construed to require "a clear expression of intent to commit perjury ... before an attorney can reveal client confidences." United States v. Long, 857 F.2d 436, 445 (8th Cir.1988). We think this *99 reading of Nix is overly narrow. The Supreme Court did not limit its holding to cases in which the client is the lawyer's source of information, and we see no reason to confine Nix to its facts. However, we do agree that a lawyer's duty to disclose future crimes or fraud by the client depends on the lawyer's state of knowledge. In short, actual knowledge is required. In re Grievance Committee of the U.S. District Court, 847 F.2d 57, 63 (2d Cir.1988) (construing DR 7-102(B) (2) to require actual knowledge).[9] "It is admittedly difficult for a lawyer to `know' when the criminal intent will actually be carried out, for the client may have a change of mind." Florida Rule 4-1.6, Comment. Federal and state courts have agreed that actual knowledge means at least a "firm factual basis." Long, 857 F.2d at 445; United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3rd Cir. 1977); Witherspoon v. United States, 557 A.2d 587 (D.C.Ct.App.1989); State v. James, 48 Wash. App. 353, 739 P.2d 1161, 1169 (1987).[10] Other courts have framed the analysis in terms of proof "beyond a reasonable doubt." See, e.g., Shockley v. State, 565 A.2d 1373, 1379 (Del.1989).[11] All of these courts have generally equated a firm factual basis and proof beyond a reasonable doubt with the actual knowledge standard. The actual knowledge standard is necessary to prevent unnecessary disclosure of client confidences and to protect the fiduciary nature of the attorney-client relationship. While defense counsel in a criminal case assumes a dual role as a "zealous advocate" and as an "officer of the court," neither role would countenance disclosure to the Court of counsel's private conjectures about the guilt or innocence of his client. It is the role of the judge or jury to determine the facts, not that of the attorney. It is essential to our adversary system that a client's ability to communicate freely and in confidence with his client be maintained inviolate. When an attorney unnecessarily discloses the confidences of his client, he creates a chilling effect which inhibits the mutual trust and independence necessary to effective representation. Johnson, 555 F.2d at 122. Applying this standard to the record, the Court must determine whether DeFabio knew that Del Carpio had fled the jurisdiction and would not appear for trial, in violation of his bond conditions. DeFabio had attempted to reach his client on numerous occasions without success. Del Carpio's wife called DeFabio to tell him that Del Carpio had packed a suitcase and left the marital residence.[12] She did not know where he had gone. Armed with these facts, DeFabio appeared before the Court three days before trial at the calendar call and moved for a continuance of the trial date. DeFabio did not advise the Court of Del Carpio's disappearance until three days before the new trial date, at the second calendar call. Based on this record, the Court finds that DeFabio had a firm factual basis for *100 believing that Del Carpio had jumped bond and did not intend to appear for trial. DeFabio had been unable to contact Del Carpio since the early stages of proceedings, and could not reach him even three days before trial. Moreover, Del Carpio's wife had called DeFabio to advise him that Del Carpio had left the house with a suitcase for parts unknown. It would not be a matter of speculation to conclude that Del Carpio had fled the jurisdiction. On the contrary, these facts, taken together, provided counsel with a firm factual basis for believing that his client did not intend to appear for trial. This factual finding requires the Court to consider a difference between the perjury and bailjumping scenarios. In the perjury context, a lawyer who knows that his client intends to commit perjury need not advise the court until the client takes the witness stand. In the bail-jumping context, it is less certain at what point in time a lawyer must advise the court that the client intends to jump bail. DeFabio did ultimately advise the Court of his client's intentions, three days before trial. However, he first appeared before the Court to secure a continuance of the trial date. At that time, there can be no question that DeFabio had a duty of disclosure as an officer of the Court. Even if his scheduling conflict was legitimate, DeFabio could not seek an extension of time to appear for trial when he had a firm factual basis for believing that his client would not appear for the scheduled trial date. His failure to inform the Court could only assist Del Carpio in succeeding in his efforts to elude law enforcement officers. In effect, DeFabio's attempt to secure a continuance, no matter how legitimate his motive, could only buy more time for the defendant to flee the jurisdiction. The Court concludes that DeFabio was required to inform the Court that he had a firm factual basis for believing that his client would not appear for trial before moving for a continuance of the trial date. Disclosure was necessary to "avoid assisting a criminal or fraudulent act by the client," Florida Rule 4-3.3(a) (2) and "to prevent a client from committing a crime," Florida Rule 4-1.6(b). We do not

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believe that this holding creates a conflict for an attorney between his duties to a client and to the court. "The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law." Sanborn v. State, 474 So. 2d 309, 312 (Fla. 3d DCA 1985). III. CONCLUSION Although the Court has determined that DeFabio's conduct was not consistent with his obligations as an officer of the Court, we recognize that the state of the law, as developed in the case law and ethics opinions, has been uncertain. Perhaps counsel should have remembered that discretion is the better part of valor. Nonetheless, the Court will stay its hand and no sanctions will be imposed. However, this Memorandum Order will be published so the defense bar will be put on notice of this ethical obligation in like situations. It is so ordered. DONE and ORDERED. NOTES [1] DeFabio argued that, as new counsel, he required additional time to prepare Del Carpio's defense. DeFabio further represented that he had conflicting vacation plans and a special trial setting in a separate matter. [2] "[F]ederal district courts have clear statutory authority to promulgate rules governing the admission and conduct of the attorneys who practice before them." Greer's Refuse Serv., Inc. v. Browning-Ferris Indus., 843 F.2d 443, 446 (11th Cir.1988); see 28 U.S.C. §§ 1654 & 2071; Fed.R. Civ.P. 83. This district has promulgated the Rules of Disciplinary Enforcement for the United States District Court for the Southern District of Florida. For misconduct defined in these Rules, and for good cause shown, and after notice and opportunity to be heard, any attorney admitted to practice before this Court may be disbarred, suspended from practice before this Court, reprimanded or subjected to such other disciplinary action as the circumstances may warrant. Rule 4, part A (Standards for Professional Conduct) of the Rules of Disciplinary Enforcement for the United States District Court for the Southern District of Florida. [3] Rule 4, part B of the Rules of Disciplinary Enforcement for the Southern District of Florida, supplementing Rule 16(C) of the Local Rules of this Court. [4] The Florida Supreme Court adopted the Rules Regulating the Florida Bar, effective January 1, 1987, superseding the Florida Bar Code of Professional Responsibility previously in force. On most issues, the Rules track the American Bar Association's Model Rules of Professional Conduct, which the ABA adopted in 1983. However, the Florida Rules differ from the ABA Model Rules on certain issues, including client fraud and attorney-client confidentiality. [5] "The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." Rules Regulating the Florida Bar, Rule 4-1.6, Comment. [6] Under Rule 1.6 of the ABA Model Rules of Professional Conduct, a lawyer may reveal such information to the extent that "the lawyer reasonably believes necessary [t]o prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." See also Model Code of Professional Responsibility, DR 4-101(B) (1, 2), (C) (3) (a lawyer "may reveal [t]he intention of his client to commit a crime and the information necessary to prevent the crime."). [7] Rule 3.3(a) (2) of the ABA Model Rules of Professional Conduct is identical. DR 7-102(B) (1) of the ABA Model Code of Professional Responsibility provides: [A] lawyer who receives information clearly establishing that [h]is client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, or if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal except when the information is protected as a privileged communication. In addition, the ABA Standards Relating to the Administration of Criminal Justice, the Defense Function, Standard 4-3.7 provides: A lawyer may reveal the expressed intention of a client to commit a crime and the information necessary to prevent the crime, and the lawyer must do so if the contemplated crime is one which would ... corrupt the process of the courts and the lawyer believes such action on his or her part is necessary to prevent it. [8] In 1973, the Professional Ethics Committee of the Florida Bar issued an opinion concluding that an attorney has an affirmative duty to inform the court that his client has jumped bail. Florida Bar Comm. on Professional Ethics, Formal Op. 72-34 (1973). The Committee relied on the ABA's Formal Opinion 155 (1936), which held that an attorney has a duty to disclose the location of a client who has fled the jurisdiction while out on bail. After the ABA Committee withdrew this opinion, see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 84-349 (1984), the Florida Bar Ethics Committee withdrew its opinion for reconsideration in January 1989. [9] One court has imposed a duty to investigate when the lawyer has "clear information" indicating crime or fraud by the client. In re Grand Jury Subpoena, 615 F. Supp. 958, 969 (D.Mass. 1985). However, we do not believe that the ethical rules, as written, require a lawyer to take affirmative steps to discover client fraud or future crimes. Independently, the Court is of the view that imposing a duty to investigate the client would be incompatible with the fiduciary nature of the attorney-client relationship. [10] Certainly, "[m]ere suspicion" is not enough. Sanborn v. State, 474 So. 2d 309, 313 n. 2 (Fla. 3d DCA 1985). [11] "A number of commentators also support a reasonable doubt standard." Shockley, 565 A.2d at 1379 n. 7 (citing commentators). This standard is not designed to permit a lawyer "to turn a blind eye to the facts" with impunity. Shockley,at 1379 n. 8. However, consistent with the reasonable doubt standard of proof in criminal trials, "proof beyond a moral certainty" is not required. In re Grievance Committee, 847 F.2d at 63. [12] Notwithstanding the wife's disclosure, the marital residence will necessarily be forfeited to the Government in order to meet the $200,000 personal surety bond.

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